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25 June 2020
With the coronavirus pandemic affecting workplaces all across Wales and the UK, we’re receiving many more enquiries from Members of the Senedd and their staff about employment rights. This article provides background information on the areas we’re most frequently being asked about, along with sources of specialist advice for individual cases. For individual cases, specialist advice should be sought.
Employment rights are a reserved matter with the exception of setting agricultural wages, meaning that decisions and laws are generally made at Westminster. However, public health measures such as social distancing are devolved to the Senedd. The Welsh Government and Wales Trades Union Congress (TUC) have made a joint statement setting out their views on how employers, unions and workers should work together to ensure that workers are treated fairly during the pandemic.
Our article on coronavirus and employment covers related subject areas such as the Coronavirus Job Retention Scheme, the Self-Employed Income Support Scheme and Statutory Sick Pay.
Health, safety, and social distancing at work
Both the Welsh and UK Governments recommend that employers should encourage staff to work at home where possible during the coronavirus pandemic. However, workplaces can still operate if they provide key services or have not been required to close, and where homeworking is not possible.
The Welsh Government published guidance for employers on limiting the spread of coronavirus in workplaces. Employees and customers should be reminded to wash their hands more frequently than usual, for 20 seconds with soap and water, or to use hand sanitiser if soap and water is unavailable. Additionally, objects and surfaces that are touched regularly should be cleaned and disinfected frequently.
The Welsh Government also made regulations that require employers to take ‘reasonable measures’ to maintain social distancing of 2 metres between people in a workplace. These regulations require employers to have regard to guidance and supplementary guidance published by the Welsh Government on social distancing in the workplace. Amendments to these regulations also require reasonable measures to be made to maintain social distancing for click and collect orders and for businesses asked to open by Welsh Ministers or local authorities.
The law applies to workplaces like offices and factories, and also to places like building sites, roadworks and work taking place in people’s homes. However, it does not apply to vehicles, as the Welsh Government states that it is not possible to take reasonable measures to socially distance.
Examples of reasonable measures set out by the Welsh Government include things like: reducing the number of people in a workplace at a particular time, increasing space between staff, altering tasks undertaken to reduce contact and staggering shifts.
If this law is not followed, complaints can be made to local authority environmental health officers or to the police who have powers to investigate. Failure to keep to these regulations can result in a Fixed Penalty Notice, or prosecution and an unlimited fine.
Returning to work
The Welsh Government has published general workplace guidance setting out measures for a safe return to the workplace, In addition to the social distancing requirements set out above, key points from this guidance include:
- Workers are only able to return to the workplace if it is not reasonably practicable for them to work from home.
- Employers must continue to fulfil their legal duties under new and existing health and safety laws to maintain and protect the physical and mental health, safety and welfare of their employees and customers and visitors to their premises.
- All risks should be assessed, with meaningful discussion with staff and/or their recognised trade union, before work recommences. If a business is required by law to have a written risk assessment (i.e. where there are 5 or more employees), then significant findings must be written down and control measures put in place. Regardless of the size of the business, risk assessments for pregnant women are a legal requirement.
- When measures are in place and staff and visitors are experiencing them for the first time, carrying out induction sessions so that everyone is familiar with any new systems or reporting procedures is a sensible step.
- It is essential that there is clear, precise and constant communication between employers, employees and other visitors to the workplace, about the reasonable and proportionate actions taken regarding workplace safety. Safety messages should be circulated regularly to all employees using an agreed method which is accessible to all. Posters and prominent visual aids and notices in the workplace will help reinforce these safety messages.
The Welsh Government has also published a number of sector-specific documents that detail measures that these industries can take. These include:
- Public transport operators;
- Creative industries: guidance for a phased return
- Sport, recreation and leisure: guidance for a phased return
Absence from work
People with caring responsibilities, who are ‘shielding’ in line with government guidance or are considered to be in a vulnerable group, who live with a vulnerable person, or are afraid of catching coronavirus, may be unable or unwilling to go to work.
People who cannot work because of the crisis, including those whose work has dried up, and those who are shielding or caring for people, may be able to be ‘furloughed’ under the UK Government’s Coronavirus Job Retention Scheme. The UK Government’s guidance suggests that workers ask their employer if they can be furloughed, although this is a decision for individual employers to take. This scheme pays up to 80% of furloughed employees’ usual monthly wage costs, up to £2,500 a month (not including bonuses, fees or commission). Employers can top up the remaining 20%, or any amount in excess of the £2,500 limit, but they are not required to do this.
People may also be able to take the time off as holiday or unpaid leave, however employers do not have to agree to this.
The Advisory, Conciliation and Arbitration Service (Acas) advises employers to listen to the concerns of their staff, and take steps to protect everyone, however they advise that workers who refuse to attend work without a valid reason could face disciplinary action.
If an employee has urgent caring responsibilities, they may be able to take a ‘reasonable’ amount of time off for dependents. The time off does not have to be paid, but employers can choose to do so.
The Health and Safety Executive highlights that employers must do a general risk assessment which includes pregnant women and new mothers, and if it is unsafe for them to attend work, they have to be suspended on full pay if adjustments cannot be made to working conditions and hours to remove risks. If a suspension runs into the 4 weeks before an employee is due to give birth, ACAS advise that maternity leave and pay will start automatically the day after the employee’s first day off. Maternity Action has published a wide range of information on coronavirus and rights and benefits during pregnancy and maternity leave.
If someone is to be made redundant from their job, there are a number of legal requirements set by the UK Government that their employer must follow. Acas has published detailed guidance which covers how the redundancy process works.
The employer must select which staff are to be made redundant in a fair and objective way. Once employers have decided who is to be made redundant, they are required to consult with the affected workers about why they are being made redundant, and any alternatives to redundancy. If over 20 employees are made redundant at the same time, their employer must follow rules covering consultation on collective redundancies.
If someone has been working for at least two years for their employer, they will usually be entitled to statutory redundancy pay.
Workers must be given a notice period before their employment ends. As well as statutory redundancy pay, employers should pay workers through their notice period, or can end someone’s employment without notice if ‘payment in lieu of notice’ is included in their employment contract.
The Welsh Government offers redundancy support to workers and employers. Careers Wales can support workers facing redundancy through careers advice, help with writing CVs and applications, and providing information on job vacancies and sources of funding. It also supports employers who are considering making staff redundant by providing advice.
The ReAct programme also provides support to help people made redundant back into work quickly. It is open to people living in Wales who are under notice of redundancy or have been made redundant within the last three months. There are a number of elements of support offered through the programme, including grants to help individuals undertake training, additional funding to help people overcome barriers to training and grants to encourage employers to employ somebody made redundant from their last job.
If an employer dismisses a worker, they must show that they have a valid reason and have acted reasonably in the circumstances. They must also have fully investigated the situation fully, and have been consistent in how the employee is treated compared to other members of staff.
Normally someone who is dismissed must be given at least the statutory minimum notice period, however there are some situations such as violence or theft where they can be dismissed immediately.
Acas has set out examples of different situations that may be classed as fair dismissal, such as reasons related to an employee’s conduct, their capability to do their job, and redundancy.
A dismissal could be unfair if the employer does not have a good reason for dismissing a staff member, or if they do not follow their formal disciplinary or dismissal process. The UK Government and Acas highlight situations which are classed as automatically unfair dismissal, covering areas such as family circumstances, pregnancy and maternity, and pay and working hours.
If someone thinks they have been unfairly dismissed, they may be able to pursue a claim at an employment tribunal if they cannot resolve the issue with their employer. Before claiming they must inform Acas, and claims must be made within three months of their employment ending.Acas offers the option of early conciliation to see whether the issue can be resolved before a tribunal takes place.
To be able to claim for unfair dismissal, someone must be classed as an employee in employment law and have worked for their employer for at least two years. However, the two year qualifying period does not apply if they have been dismissed for a reason that is automatically unfair.
Constructive and wrongful dismissals both relate to breaches of contract by an employer. Constructive dismissal is when an employee resigns because they consider that the employer has breached their contract at least once. Wrongful dismissal is where an employee considers that their contract has been breached in the dismissal process.
Additionally, if someone thinks that they have been treated unfairly because of a protected characteristic like race, sex or age, they can take this case to an employment tribunal if they are unable to resolve the issue with their employer. The two year period does not apply in this case either. The Equality Advisory and Support Service can provide advice on this through their contact webpage or via their hotline number, which is 0808 800 0082.
Where to get specialist advice
For individual cases, specialist advice services can provide tailored advice and expertise:
- The Advisory, Conciliation and Arbitration Service (Acas) can provide advice on employment and has a page on Coronavirus: advice for employers and employees. Its helpline is 0300 123 1100;
- Citizens Advice can provide employment advice online or on the phone – 03444 77 20 20. It also has an information page on coronavirus;
- Members of trade unions can access support on workplace issues by contacting their union. Wales TUC has an advice page for workers in Wales; and
- Business Wales has a page on coronavirus and can be contacted on 03000 6 03000.
Article by Gareth Thomas, Senedd Research, Welsh Parliament
We’ve published a range of material on the coronavirus pandemic, including a post setting out the help and guidance available for people in Wales and a timeline of Welsh and UK governments’ response.
You can see all our coronavirus-related publications by clicking here. All are updated regularly.